The pause on enforcement of the Foreign Corrupt Practices Act (FCPA) is over. On June 9, the Deputy Attorney General of the Department of Justice (DOJ) issued a memorandum (the June 9 Memorandum) establishing new enforcement guidelines aimed at aligning FCPA prosecutions with U.S. economic and national security interests. According to the DOJ, future enforcement will seek to avoid “undue burdens on American companies operating abroad” while targeting “conduct that directly undermines U.S. national interests.”
The new guidance emphasizes a targeted enforcement approach: investigations will prioritize individual misconduct, will “not attribute nonspecific malfeasance to corporate structures,” will move forward expeditiously, and will account for collateral consequences, such as the economic impact on companies and their employees, throughout the investigative process. While time will tell what these priorities will look like in practice, the June 9 Memorandum directs prosecutors to consider a non-exhaustive list of four policy priorities when determining whether to initiate an investigation.
1. “Total Elimination of Cartels and Transnational Criminal Organizations”
The first factor asks whether the alleged misconduct is connected to the operations of a criminal cartel or transnational criminal organization. This consideration includes the use of shell companies that facilitate money laundering for such organizations or bribing officials tied to such entities. While this enforcement priority may be relevant to certain companies subject to the FCPA, anti-money laundering and counter-terrorist financing laws are better designed to combat drug cartels and terrorist organizations and are likely to remain the primary vehicle for enforcement actions against entities and individuals engaging in such business. See, e.g., United States v. Lafarge S.A., No. 22-cr-444 (E.D.N.Y. Oct. 18, 2022).
2. “Safeguarding Fair Opportunities for U.S. Companies”
The second factor asks whether the alleged misconduct causes economic harm to “specific and identifiable U.S. entities” or individuals. The June 9 Memorandum’s directive appears to address a long-held concern voiced by U.S. businesses: that foreign competitors are paying bribes to obtain contracts, distorting markets and putting law-abiding U.S. firms at a disadvantage. U.S. concerns are then forced to choose between losing business or paying a bribe in violation of the FCPA. Prosecutors are instructed to prioritize investigations that involve a concrete injury to U.S. interests.
This focus reflects a significant reorientation: it ties enforcement not only to whether a law was broken, but to whether the violation had a direct and adverse effect on U.S. interests. Foreign companies that bid against U.S. firms or operate in sectors where Americans seek market access are therefore more likely to face scrutiny. This is of significant concern for foreign-based companies traded on U.S. stock exchanges—which can suffice to establish jurisdiction—which may not be afforded the implicit protection of the goal of “safeguarding U.S. national security and economic prosperity.”
3. “Advancing U.S. National Security”
The third factor, although vaguely defined, may prove to be the most impactful. Under the heading “Advancing U.S. National Security,” the DOJ states that enforcement should focus on foreign corruption that threatens vital national interests—particularly in sectors like defense, intelligence, mining, and critical infrastructure. As articulated in the June 9 Memorandum, corruption in those sectors may harm American national security by compromising the “strategic business advantages” of American companies operating abroad. Companies with ties to mining or defense-related industries should pay particular attention to renewed enforcement.
4. “Prioritizing Serious Misconduct”
The fourth and final factor instructs prosecutors to focus on clear, serious misconduct—particularly actions that exhibit “strong indicia of corrupt intent tied to particular individuals.” This includes substantial bribes, efforts to conceal payments, falsified records, or obstruction of justice. While this may signal a disinterest in enforcement rooted in violations of the FCPA’s internal controls provisions, companies that are made aware of bribery violations will have to carefully consider their actions to avoid subsequently falsifying records or concealing the true purpose of payments.
The June 9 Memorandum states that enforcement will not target routine or low-dollar business courtesies, referencing the FCPA’s exception for facilitation payments—or “grease payments”—which applies to payments to foreign officials to expedite or secure routine government action. However, companies should remember that most countries with foreign bribery laws, including the UK, Canada, and France, do not recognize an exception for facilitation payments; and most domestic bribery statutes do not exempt them from enforcement either.
Going Forward
While the new guidance emphasizes the protection of American companies and interests, it does not provide immunity for U.S. firms. The Memorandum is clear that the nationality or headquarters location of an entity under investigation is not determinative; prosecutors will continue to evaluate “the totality of the circumstances” in each case. Moreover, the Securities and Exchange Commission (SEC), which also enforces the FCPA, has not yet indicated whether it will adopt a similar approach, leaving some uncertainty about parallel regulatory exposure.
The new guidelines offer greater clarity on DOJ enforcement priorities, but they also highlight the continuing complexity of cross-border anti-corruption compliance. Businesses—especially those operating in sensitive sectors or in close competition with U.S. firms—should proceed with caution and consider whether their practices could trigger heightened scrutiny under the revised framework.